Excerpt:.....to ex p/7. pw/1 kanhaiya nath has stated that the driver did his best to save the accident, the truck struck against a branch of the tree. according to this witness, the truck bad defective brakes. state 1975crilj1009 wherein it has been held that it is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony. 11. having given my most anxious consideration to the arguments advanced by the learned counsel for the parties, i am constrained to observe that in this case, the prosecution has failed to lead any evidence regarding; there is nothing on the record to warrant an..........to ex p/7. pw/1 kanhaiya nath has stated that the driver did his best to save the accident, the truck struck against a branch of the tree. the truck was being driven at the speed of 25 to 30 miles an hour. if the drives has taken a deeper turn the truck would have collided against the tree. pw/2 pritam singh is the person who lodged the fir. he stated that the truck was coming at the speed of 20 to 25 miles an hour the driver had blown born from a distance of one furlong or so. this witness was declared hostile by the prosecution, pw/3 nandlal, pw/4 gura singh, pw/5 balwant ram, pw/6 bhoor singh, pw/7 dr. s.k. sharma and pw/8 arjun singh are only formal witnesses, pw/9 gordhan singh checked the vehicle on 19-5-1969. there was a free play in the steering and the hand-brakes were not.....

Judgment:

P.D. Kudal, J.

1. This is a criminal revision against the judgment of the learned Addl. Sessions Judge, Sri Ganganagar, dated February 2, 19(sic)2, whereby the conviction of the accused-applicant under Section 337, 304(a) and 279, IPC was sustained.

2. The facts of the prosecution case, in brief, are that a report was lodged with the police on 18-5-1969 by Pritam Singh that at about 12.30 pm. when he was going to meet his friend Dalip Singh, a truck coming from Hindumalkot and going to Kota had struck down a cyclist resulting in his death. The driver was driving the truck with a great speed, and as such, necessary suitable action be taken against him. The accused was challenged and sent for trial before the Munsiff-Magistrate, Ganganagar. The learned Magistrate convicted the accused-applicant under Section 279, IPC to six months simple imprisonment and a fine of Rs. 600/-. He was also convicted under Section 304A, IPC to two years rigorous imprisonment and a fire of Rs. 2000/-, and in default of payment of fine of Rs. 500/- to simple imprisonment for one month, and in default of payment of Rs. 2000/- to simple imprisonment for six months. All the substantive sentences were ordered to run separately.

3. The prosecution as examined 13 witnesses, and exhibited Ex P/1 to Ex P/7. PW/1 Kanhaiya Nath has stated that the driver did his best to save the accident, The truck struck against a branch of the tree. The truck was being driven at the speed of 25 to 30 miles an hour. If the drives has taken a deeper turn the truck would have collided against the tree. PW/2 Pritam Singh is the person who lodged the FIR. He stated that the truck was coming at the speed of 20 to 25 miles an hour the driver had blown born from a distance of one furlong or so. This witness was declared hostile by the prosecution, PW/3 Nandlal, PW/4 Gura Singh, PW/5 Balwant Ram, PW/6 Bhoor Singh, PW/7 Dr. S.K. Sharma and PW/8 Arjun Singh are only formal witnesses, PW/9 Gordhan Singh checked the vehicle on 19-5-1969. There was a free play in the steering and the hand-brakes were not functioning. The foot-brakes could work only after three to four strokes. PW/10 Balbeer has also been declared hostile. Balbeer is the person who was Fitting in the truck. According to this witness, the truck first collided with the tree as a result of which Kanhaiya Nath and others sitting on the truck became unconscious. At that time the truck was going at the speed of 25 to 30 miles an hour.

4. On behalf of the accused applicant, it was contended that there inso direct evidence regarding the manner in which the collision had taken place. It was also contended that Pritam Singh PW/2 who lodged the FIR, has not supported the prosecution case, and he has been declared hostile. PW/1 Kanhaiya Nath and PW/10 Balbeer have also not supported the prosecution case. I was also contended that according to PW/10 Balbeer the truck collided with the tree first but the learned trial Court has held that the truck run over the cyclist first, and then collided with tree On placing reliance on the site-plan, it was also contended that the site-plan is not a substantive puce of evidence, and cannot form the basis of conviction of the accused. It was also contended that the hostile witnesses are altogether not worthy of credence, and their evidence has to be discarded in toto.

5. On behalf of the State, it was contended that the very fact that the accused-applicant, was driving the vehicle without proper brakes, would lead to the irresistible conclusion that he was acting rashly and negligently. It was also contended that on hearing the horn, the cyclist had stopped on one side of the road, and the fact that the truck even then struck him goes to show that the driver was driving the truck in rash and negligent manner.

6. The respective contentions of the learned Counsel for the parties have been considered, and the record of the case carefully perused. The prosecution has led no evidence to the effect as to how and in what manner the collision took place. There is a material contradiction which has not been reconciled with. PW/10 Balbeer has stated that the truck collided with the tree first, and then when he regained consciousness, be saw that the cyclist has been killed. The learned trial Court has placed reliance on the title-plan, and has held that the cyclist was run over first, and the truck collied with the tree later on. The prosecution has produced four important witnesses. PW/1 Kanhaiya Nath does not corroborate the prosecution story. PW/2 Pritam Singh, who lodged the First Information Report, and PW/10 Balbeer, who was sitting on the truck, have been declared hostile; and PW/9 Gordhan Singh is a Mechanical Inspector, who examined the truck after the accident. According to this witness, the truck bad defective brakes. The foot-brakes could work only after three to four strokes, and the hand brakes were not working. Steering had free-play also. It is on the basis of this evidence that the learned Courts have maintained the conviction of the accused-applicant. The learned Counsel for the accused-applicant has relied on Jagir Singh v. State : 1975CriLJ1009 wherein it has been held that it is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony.

7. Reliance was also placed on Sat Kumar v. State of Haryana 1973 SCC (Cri.) 173, wherein it has been held that the site plan which shown mark No. 1 as the place of occurrence, is in consequence of a statement made during investigation the ASI had already registered the case under Section 164, Cr.P.C. any statement made by witnesses during the course of investigation would be hit by Section 162(1), CrPC and inadmissible in evidence except for the purpose of the contradiction of the witness when examined in the Court either by the accused or by the prosecution with the leave of Court. A plan prepared in the way done showing the place of occurrence may not be admissible in law, and no reliance can be placed on the place of occurrence, as indicated therein.

8. Reliance was also placed on State v. Harisingh 1968 RLW 485 wherein it has been held as under:

The mere fact that a fatal accident took place would hot by itself be enough to make the accused liable under Section 304A, I.P.C. To bring home an offence under this section, it must be proved beyond reasonable doubt by the prosecution that the death of the victim was the direct result of rashness or negligence on the part of the accused.

In order to impose criminal liability on the accused, it must be found as a fact that the collision was entirely or at least mainly due to rashness or negligence on the part of the accused It is not sufficient if it only found that the accused was driving the vehicle at a fast speed.

It is plain from the prosecution evidence itself that the bus was being driven with a normal speed and towards the correct side of the road. It if also manifest from the prosecution evidence that Kumari Indu, who was coming on a bicycle from the northern side of the read, did not wait till the bus passed off and took a turn on her right side of the road. The fact she was knocked down by the rear wheel of the bus and not by the front wheel or mud guard further indicates that the mishay was not the result of negligence or rashness on the part of the driver. It is further plain from the prosecution evidence itself that the driver stopped the but, after taking it towards the extreme left, at a distance of about 7 ft. from the actual place of the accident.

When there was no rashness or negligence on the part of the bus driver, far having killed the girl, so far as the use of the road and manner of driving the bus was concerned, the fact that the vehicle of the accused had free play cannot be taken into consideration in convicting the accused under Section 304A I.P.C., though it can be made the subject of prosecution under the Motor Vehicles Act, when it is clear that the defect in question was not in any way responsible for the accident.

When a person is run over by a bus and is crushed on the spot, the spectators prejudiced against the driver of the vehicle and in such a case it becomes difficult for the court to ascertain the circumstances of the case. It is possible chat the present mishap took place because the girl abruptly paddled from the left side of the road towards its right, without knowing its consequences the lorry stopped at a distance of about 7 ft away from the place of the accident. In that circumstance, the accused cannot be held liable for the accident.

9. On behalf of the State, reliance was placed on Narsingh Lal v. State 1961 RLW 466, wherein it has been held that brakes in a motor vehicle are fitted for the purpose of controlling it and they must always be kept in an efficient order in order to see that they operate in satisfactory manner in the time of emergency If the brakes are not in order, it means that the driver is letting loose a monster in a crowded place which the driver of the vehicle is not it, a position to control.

10. Reliance was also placed on State v. Mangal Singh AIR 1953 Patna 56, wherein it was held that the accused was driving the bus with a high speed that, when he made an attempt to apply the foot brakes on being signaled to stop, he was completely unable to control it. Two of the wheels had already gone into a nala by the side of the road. The bus, after having swerved to the right and to the left, ultimately capsized on the road with the result that the body of the bus went into pieces. The road was clear. One of the passengers died there and then the one got his spine broken Many others received other injuries. In that case, it was held that the accused was guilty of offences under Sections 270, 338 and 304A, Penal Code.

11. Having given my most anxious consideration to the arguments advanced by the learned Counsel for the parties, I am constrained to observe that in this case, the prosecution has failed to lead any evidence regarding; the direct collision, and the manner in which the cyclist was run over. The eyewitnesses have not supported the prosecution story. There is nothing on the record to warrant an inference that the collision took place because the truck had defective brakes or otherwise as there was a free play in the steering It is really unfortunate that the guilt of the accused could not be brought home despite the fact that the cyclist bad lost his life The prosecution story might be true, but the prosecution has yet Jo travel a long distance, and has to establish that to story put forth by the prosecution must be true. As PW/2 Pritam Singh and PW/10 Balbeer have been declared hostile, their testimony cannot be regarded as worthy of any credence. PW/1 Kanhaiya Nath has in no way supported the prosecution story. Under these circumstances, the revision filed by the accused applicant is hereby allowed. The accused is entitled to the benefit of doubt.

12. In the result, the accused-applicant is hereby acquitted of the charge under Sections 304A, 279, and 337, IPC. The accused is already on bail, and he need not surrender. The bail bonds furnished by him shall stand cancelled.